Meet the Seven Guantánamo Prisoners Whose Appeals Were Turned Down by the Supreme Court

17.6.12

I wrote the following article for the “Close Guantánamo” website, which I established in January with US attorney Tom Wilner. Please join us — just an email address is required to be counted amongst those opposed to the ongoing existence of Guantánamo, and to receive updates of our activities by email.

This week, the Supreme Court took a decision not to accept appeals by seven Guantánamo prisoners who, over the last few years, either had their habeas petitions denied, or had their successful petitions overturned on appeal. The ruling came the day before the 4th anniversary of Boumediene v. Bush, the 2008 case in which the Supreme Court granted the prisoners constitutionally guaranteed habeas corpus rights.

That led to a number of stunning court victories for the prisoners between 2008 and 2010, but in the last two years no prisoners have had their habeas petitions granted, because judges in the D.C. Circuit Court, a bastion of Bush-era paranoia about the “war on terror,” where the deeply Conservative Senior Judge A. Raymond Randolph holds sway, have unfairly rewritten the rules in the government’s favor, so that it is now almost impossible for a habeas petition to be granted.

This is a particularly low point in Guantánamo’s bleak history, because, with the Supreme Court’s refusal to rescue habeas corpus, and its death as a remedy for the Guantánamo prisoners, the remaining 169 men — and especially the 87 already cleared for release but still held — are now trapped, possibly forever, because all three branches of the US government have failed them.

In addition to the Supreme Court, the Obama administration has failed the remaining prisoners, not only through the President’s failure to close Guantánamo within a year, as he promised, but also through his refusal, ever since, to show any interest in belatedly fulfilling his promise. Blame also lies with Congress, where lawmakers have cynically imposed onerous restrictions on the ability of the administration to release or transfer any of the remaining prisoners, with the intention of making it impossible for the administration to close the prison — and almost impossible for anyone to be released.

As Tom Wilner (attorney and “Close Guantánamo” steering committee member) noted back in January, a waiver exists in the latest legislation, the National Defense Authorization Act (NDAA), allowing the President to bypass Congress when it comes to releasing prisoners, but President Obama has not yet chosen to use it.

Some of the coverage focused on the story of one of the men whose appeals were turned down, Adnan Farhan Abdul Latif, a Yemeni. Noticeably, he is one of the prisoners featured in our report, and in fact he had his release approved on three separate occasions before the D.C. Circuit Court intervened to trap him at Guantánamo, possibly for the rest of his life.

Latif was cleared by a military review board under President Bush in December 2006, by the interagency Guantánamo Review Task Force established by President Obama in 2009, and by Judge Anthony Kennedy Jr., of the District Court in Washington D.C., who granted his habeas corpus petition in July 2010.

When the D.C. Circuit Court intervened to prevent his release, overturning his successful habeas petition in November last year, two of the three judges ordered that “a presumption of regularity” should be given to an intelligence report that was central to the government’s case against Latif, who has always maintained that he traveled to Pakistan to secure treatment for a head injury sustained in a car crash in Yemen, and was then advised to seek help in Afghanistan.

In a dissenting opinion, the third judge, David Tatel, took exception to his colleagues’s demands, noting that an intelligence report was “produced in the fog of war, by a clandestine method that we know almost nothing about,” and could not, therefore, be regarded as necessarily reliable. He also — unlike the Supreme Court — noted that it was “hard to see what is left of the Supreme Court’s command” that the habeas review process be “meaningful,” in light of his colleagues’ ruling, and warned that, in future, if the ruling stood, it would be impossible for any prisoner to have their habeas petition granted.

In reflecting on this dreadful state of affairs, it is impossible not to notice the gulf between the courage of Judge Tatel compared to the justices of the Supreme Court, who refused — unanimously, but without elaboration — to accept Latif’s appeal, even though Latif had a compelling case, in which, as Lyle Denniston noted for SCOTUSblog, he challenged “the presumption of accuracy of US intelligence reports,” challenged the Circuit Court’s “power to find facts on its own,” and also challenged the Circuit Court’s “refusal to uphold any release order.”

In considering Latif’s case, it occurred to me that the other six prisoners had also, to varying degrees, been failed disgracefully by the Supreme Court — and, in some cases at least, by the Obama administration, which had proceeded with cases through the Justice Department, even when there were sometimes clear reasons for officials not to do so.

Almerfedi, seized in Iran, and held in secret prisons in Afghanistan before his transfer to Guantánamo, had challenged the government’s detention authority if, as he claimed in his case, it was “based on non-incriminating facts.” He, like Latif, also challenged the Circuit Court’s “refusal to uphold any release order,” as well as asking about the validity of a detainee being required to “rebut government evidence found to be credible,” when he had — and has — no means of doing so.

The point about the inability to refute evidence, as with Latif’s challenge to the requirement that the government’s evidence should be automatically regarded as accurate, found an echo in a challenge by a third prisoner, Fayiz al-Kandari, a Kuwaiti who lost his habeas petition in September 2010, after the Circuit Court rewrote the rules. Al-Kandari has always insisted that he traveled to Afghanistan to provide humanitarian aid, and the case against him is desperately weak, as it relies almost entirely on statements made by unreliable witnesses. However, the Circuit Court’s rewriting of the rules trapped al-Kandari, who, as a result, was calling on the Supreme Court to to allow him the right to restrict the government’s use of hearsay evidence.

Despite the lack of evidence against him, al-Kandari has never been cleared for release — either by military officials, or by a judge — but another of the seven, Uthman Abdul Rahman Mohammed Uthman, another Yemeni, had. Uthman’s habeas corpus petition was granted in February 2010, but the government appealed, and his successful opinion was reversed on appeal in March 2011. He took a different approach, challenging the government’s right to detain someone who, as he claimed in his case, “did not actually fight against US or allied forces and provided no direct support to terrorists.” He also claimed that it was a “violation of the habeas Suspension Clause if habeas review is not meaningful.”

These, too, were valid points, which, like all the others, were turned down by the Supreme Court without explanation.

The last three men had less reason for hoping that the Supreme Court would look favorably on their cases, as they all had their habeas petitions denied by the District Court for low-level or peripheral involvement with the Taliban, and it is apparently outside anyone’s remit to ask why it is that the justification for all the prisoners’ detention — the Authorization for Use of Military Force, passed by Congress the week after the 9/11 attacks — fails to distinguish between those allegedly involved with the international terrorist activities of al-Qaeda, and those involved with the Taliban’s military conflict with the Northern Alliance, which had nothing to do with terrorism, and predated the 9/11 attacks.

Of these men, Musa’ab al-Madhwani, one of six men seized in house raids in Pakistan in September 2002, who lost his habeas petition in December 2009, when Judge Thomas Hogan made a point of stating that he did not consider him to be a threat to the US, challenged his detention “based on ‘guilt by association’ with suspected terrorists,” which was “based on visits to guesthouses and training facilities,” as SCOTUSblog described it, and also called for a “right to constitutional due process protection.”

Muaz al-Alawi (described as al-Alwi), who lost his habeas petition in January 2009 for being a lowly Taliban foot soldier, challenged his detention “based on ties to the Taliban after hostilities had ended,” and also claimed there was “inadequate time” for his attorney to prepare a defense.

The last of the seven, Tawfiq al-Bihani, who lost his habeas petition in October 2010 — also for being a lowly Taliban foot soldier, seized in Iran, like Hussein Almerfedi, and also held in secret prisons in Afghanistan before his transfer to Guantánamo — sought “a basic definition of detention power, limited by the laws of war,” but like all the other claims, it was apparently regarded as irrelevant by the Supreme Court.

I hope this provides some additional context for the Supreme Court’s decision, on Monday, to accept that Judge Randolph and his colleagues are now in charge of the legal legacy of George W. Bush’s “war on terror” detainee policy. If you wish to know more, SCOTUSblog has links to all the court submissions, by both the prisoners and the government.

From our point of view, here at “Close Guantánamo,” it only confirms our resolve to keep pushing for the closure of Guantánamo, and the release of the 87 men held hostage for political reasons, and we will be working hard to build our campaign in preparation for putting pressure on whoever will be inaugurated as the next President of the United States in January 2013. If you haven’t already signed up, please do so here (just an email address required), and please also ask your friends and family to join up as well. It is time to bring this monstrous miscarriage of justice to an end.

28 Responses

One thing I find utterly bizarre is that court would overthrow a successful habeas corpus petition and deny it. To me, this is tantamount to granting a criminal defendant a dismissal of the charges against him, only to turn around and re-arrest and re-indict him because the court “changed its mind.”

Thanks, Mary. Yes, it’s bizarre – and disgraceful too. What’s depressing is how few people seem to care that Randolph and his cronies have been dismissing successful petitions to fit with their own perception of how the District Court judges should have behaved, rather than on the basis of the legitimate decisions they made. And then, of course, they followed up by specifically rewriting the rules – as they were entitled to, because the Supreme Court had left that up to the lower courts – but with the result that no habeas petition can now be successful. People should have realized the significance of this, although they didn’t, but the Supreme Court had no excuse, and really should have acted to revive Boumediene. That they didn’t is inexcusable, frankly.

Thanks, Sister, AniTa and Noor – and everyone who has liked and shared this (and thanks Noor for the particularly kind words!)
I think people did a lot under Bush to make an issue out of Guantanamo, and then trusted Obama to fulfill the promise he made on his second day in office to close it within a year. Since then, of course, the problem has been that Obama failed, but momentum was lost, and Guantanamo slipped off the radar. I do believe, however, that it cannot stay open forever, and that we will succeed, and I’d like to reiterate my request for people to join the “Close Guantanamo” campaign that I established with the attorney Tom Wilner in January – just an email required: http://www.closeguantanamo.org/Join-Us

Here’s a thought after following the latest updates on author of the Guantanamo Diaries Andy Worthington. The nine Justices of the Supreme Court did not to take up any of the appeals of innocent prisoners, although they did not provide any explanation regarding their reasons. HABEAS CORPUS IS DEAD. Connect this to the demands of the Taliban to release the prisoners or peace is not possible and there you have the guarantee of continued war. WAY TO GO AMERICA! You have no problem with the sacrifice of the lives of our soldiers and innocent Middle Eastern people for that pipeline and those poppy fields do you?

And the economy will be key, I think. War is not a route to economic health, and not just the US, but the whole of the West, needs a genuine change of leadership – one that involves really seriously rethinking how to create work in our countries rather than continuing to outsource and mechanize, and having a political class that no longer even cares about the unemployed.

Thanks, Barry. I was happy to share this on the “Free Fayiz and Fawzi” page. Ten years is terrible, but now it’s clear we’re in it for the long haul, how does 15 years sound? Or 20? Or 30? How long does the US intend to hold people rounded up with a disgraceful lack of precision, and – in many cases, including that of Fayiz – never subjected to anything resembling evidence, because all that exists are false confessions made by other prisoners? One day it will all be exposed, and it will be a historical disgrace.

Many people are, Barry. Others lack the curiosity to examine what they’re told, or have switched off completely, but the blame also lies with those who have a responsibility to understand what is true and fair and just, and what is not – lawmakers, the media, judges officials in the administration …

And then there is the case of Omar Khadr – his plea bargain was all for nought it seems. The Canadian government has not transferred him in spite of the fact the US wants him out of Guantanamo. Ten long years Omar has been in captivity. Now 25, he is a young man with a future ahead of him if he ever gets out of gitmo. Why the delay? The foot dragging? Our Prime Minister is nervous about the publicity that will emerge. Canada is complicit in torture. Prime Minister Harper prorogued Parliament to avoid implications of Afghan detainee torture. They will keep Omar Khadr in Guantanamo as long as possible to avoid the issue surfacing again. So tragic. We need an international campaign to focus again on Omar Khadr if possible. Would anyone be able to help us with this? Grateful thanks and with admiration for all that you do Andy….My anthology is a multi-genre multidiscipline book: Omar Khadr, Oh Canada (McGill University Press, 2012)…

Watching the recent MSM segment on GTMO is an absolute must, the story: “they (GTMO prisoners) have a library and soccer field-poor US taxpayer’s paying for these freeloaders we have imprisoned for ten years without charge.”

Reality, my client Abdul Ghani’s mother has died a couple years back and he has no idea why he’s in GTMO. Ghani’s functioning level is extremely low, if released he could only function with supervision. The war on the tactic of terror continues forever. Check out the “Abdul Ghani” FB page.

But hey most people don’t care since the blue team trails the red team by five points in some state.

Thanks again, Barry. Very sad, and very true about the parlous state of what passes for political life in the US, while men like your client Abdul Ghani are still being made to pay for the colossal cruelty and ineptitude of the “war on terror.”
His mother has died, and, “if released,” you write, “he could only function with supervision.” And yet this is a man who knows nothing about anything to do with militarism of terrorism, but who was actually put forward for a trial by military commission under George W. Bush. And now? Well, between them, all three branches of the US government are furiously preventing anyone from being released, so Ghani will be held forever until, presumably, people start to campaign in sufficient numbers.
Abdul Ghani’s Facebook page is here: https://www.facebook.com/abdul.ghani.75098364
And this is his story: http://www.andyworthington.co.uk/2012/03/31/close-guantanamo-abdul-ghani-an-insignificant-afghan-villager-held-for-nine-years/

[…] Meet the Seven Guantánamo Prisoners Whose Appeals Were Turned Down by the Supreme Court Posted on June 18, 2012 by eslkevin Meet the Seven Guantánamo Prisoners Whose Appeals Were Turned Down by the Supreme Court […]

[…] disputed the authorities’ claims. He said that, on Monday, he met with a Yemeni client, Hussein Almerfedi, who “hadn’t eaten in 22 or 23 or 24 days” to protest the Qur’an searches, but “had not […]